I’ve recently worked with another completely innocent client, and the same problems are there. She was accused of doing something that she not only had no idea how it happened, but for which she also had evidence-supported reasons for believing didn’t happen. I won’t talk about the details, but an analogous case would be if she were accused of arson. A house burned down because the stove was left on, and she lives alone and had nobody over. When she left the house, she turned off the stove, took a picture of it being off with a time and date stamp, and then checked it one more time before leaving. While it’s true that the house burned down and the stove being on was the reason, she had no way of knowing that it was on prior to the blaze or how it was on considering what she did.

Disciplinary boards usually use a burden-shifting approach in determining responsibility. The respondent is innocent before the hearing, but once the complainant shows that something happened and that the respondent did it, it is now up to the respondent to prove it didn’t happen or she didn’t do it. This is how it works in court (again with apologies to my law professors,) but in judicial cases it is a much heavier burden than it is in court, and almost impossible for innocent respondents to meet in most circumstances. In criminal court, all the defense has to do is show that there is a “reasonable doubt” that the defendant didn’t do something. That’s a 5-10% chance. In civil court they have to show that it is 20-30% likely that they didn’t do something. However, in judicial cases the respondent needs to show that they did not do something that happened with more than 50% certainty. Once you show that something happened and that the respondent had either control over that thing or should have had control, the noose is essentially tightened.

I know that’s confusing, but think of it this way: I show you that a house burned down, that the stove being on was the reason, and that the respondent lives alone. How can she possibly show that she didn’t do it with more than a 50% certainty? She would have to know how it actually did happen and then prove it. What this means is that if the “most likely” explanation for a violation of the conduct code on campus is that the accused person did it, there is essentially no way to prove she didn’t.

It gets worse for the innocent student during a judicial hearing.

If you actually didn’t do something and you try to show the disciplinary board that you didn’t do it, that defense can hurt you. If the board thinks that you did it and finds you responsible, it means that they do not accept your version of what happened. Since they don’t accept your version there is a good chance that they think you’re lying, or at least trying to avoid responsibility. Since the disciplinary process is supposed to be “educational,” boards are likely to sanction someone they think responsible and avoiding responsibility harsher than someone who “comes clean” and accepts responsibility. This means that if an innocent student cannot prove that she did not do something, trying to prove it can hurt her more than simply pretending she did it and accepting responsibility even though she is innocent.

The solution to this is simple-retrain the boards. Most respondents are not “innocent” or at least not completely innocent. Some may have mistakenly broken a rule and are being accused of doing it intentionally, but most actually did something wrong that brought them in front of the board. This means that the current way of doing things “works” most of the time. However, if boards are trained to analyze information from the perspective of the accused student many of these false findings of responsibility can be avoided without any impact on the current success of the boards. So if a student can come forward and show that she took reasonable steps to avoid something, that she was unaware of something, or that she actively believed something that would have prevented the violation happened it would no longer be necessary to show what “might” have happened. It is much easier to “prove” what you know to have happened or what you did, than to prove what you had no way of knowing.

Sure there may be some students who escape findings of responsibility, but as the saying goes “It is better that ten guilty persons escape than that one innocent suffer.”

What do you think? How do you weed out “innocent” students or ensure that they don’t face an insurmountable burden? Write a comment or email me at DaveK (at) Collegejudicialconsultants (dot) com.

When I was a judicial officer I was fortunate to work with an outstanding sexual assault advocacy team. The team was me, a dedicated and highly-trained detective from Campus Police, and a Victim’s advocate from the Wellness office. There were also several community resources available to survivors with BARCC (Boston Area Rape Crisis Center) and ATASK (Asian Task Force Against Domestic Violence) being our most common partners. The resources for survivors* were extensive, we had tremendous Chairs of the disciplinary committee that heard these cases, and I was as much of an advocate as I could be. We had more resources available for survivors than most schools and everyone involved was dedicated to helping a survivor through the most difficult time of her** young life. MIT received 2 Violence Against Women Act (VAWA) grants, and did great work during the time I was there.

But the system still sucked for survivors.

It wasn’t anyone’s fault (mostly), but since what happened to a survivor is so terrible, the systems in place to deal with it are inherently terrible to the person going through it. No matter how kind we were and how sympathetic the people were, it was still an adjudicatory system that heard details about the worst night(s) in a person’s life, allowed a response to those details, and asked questions about those details. There is a revictimization that comes with these hearings, and most judicial officers try to minimize that to the best of their ability.

Every single program on sexual assault tells people who support survivors that they need to do three things—believe them, help them understand that its not their fault, and give them as many choices as you can. A judicial system, however, can’t do any of those things. If it did, there wouldn’t be hearings because the converse of those things is that the accused is lying and it is totally his fault. You could just find him responsible, expel him, and call it a day.

Of course that’s not in the least bit fair (or legally defensible) so you have to have a hearing, and that hearing process is going to be even more rigidly followed than normal cases because of the potential for litigation. So not only do you have a system that says “prove it” to a survivor, but they have to do it in a certain way and only that way. If someone is brave enough to come forward and initiate a judicial process, everything that has been done to return some power is then taken away so that they can attempt to have something done about the person who committed this crime against them. Additionally, even after someone accepts that she will need to participate in the process, there is no guarantee of the outcome they desire. In fact (and this is completely anecdotally) it is probably not going to be the outcome the survivor wants, with many accused found not responsible, or given a “light” sanction despite being found responsible for something.

The problems here do not even incorporate social pressures, the impact on academics, the disruption of a survivor’s life, and the hundreds of other things that assail them. Even if a school’s response is amazing and there are escorts provided, the accused is moved out of a shared living situation and classes, and accommodations are made for academics, this person’s life is forever changed. The Department of Education’s Office of Civil Rights put forth a “dear colleague” letter that attempted to “recommend” numerous steps that should be taken to ensure that sexual assault gets addressed properly and that survivors are protected, but none of us administrators have to live the survivor’s life. [In my opinion, the best thing to have come from that letter is that schools are essentially “required” to have the lower “preponderance of evidence” standard in these cases as opposed to the “clear and convincing standard” many had for these cases. (I wrote a piece about that earlier so I won’t go into it, but check it out if you’re curious.)]

There are way too many things that need “fixing” if a campus is going have a victim-focused response to sexual assaults, and most of those are outside the scope of this piece. Instead I’m going to focus on a helping a distinct subset of survivors. This piece is for those people who, in addition to whatever else they may be doing, are going to be bringing a case against a fellow student (or a student at a different school) using that school’s campus judicial system. I wanted to provide some help for those people by offering some suggestions to help them proceed and to minimize the potential revictimization that comes with brining these cases. In order to do so I’m making numerous assumptions that you should keep in mind as you read this.

You will not use this for legal advice. If you think “do I need a lawyer” you should either get one or contact the Victim Rights Law Center to figure it out. This is procedural advice and strategy starting points for a campus judicial process only.

I’m assuming that your campus is doing everything the way it is supposed to. Sadly, this is not always the case.

I’m assuming that some type of sexual act is not in question and the case is mostly about consent since this is the most common scenario in college cases.

There are a few campuses that have independent investigators hired to handle these cases (e.g. Harvard) but I’m assuming that you have a system where some sort of hearing body handles these cases.

I’m assuming you are safe. If you believe (even if you only sort of believe and can not prove it or even explain it) that you are in current danger contact the police. I would much rather you be wrong about the risk and have help than be right about it and do nothing.

That being said, here are some information and questions to consider that I believe will help you as you participate in your campus judicial process. These general concepts should help you get started in most cases, but if you would like specific assistance for your particular case please contact us.

Get a good support team for yourself. I cannot know the particular resources on your campus, but let’s start with your unofficial support. Think about your family, your friends, your sorority, your advisor, your RA, an administrator you like, your boyfriend/girlfriend, your particular spiritual guide (e.g. priest, rabbi, etc.), your roommate, etc. From that group see if you can think of one or more people that can simply be there for you to make sure you’re okay. Someone you can talk to, someone you can vent to, someone with whom you don’t have to be “professional” when you talk to him or her. If you’re lucky there will be a person you can count on who has nothing to do with the process, and if you’re really lucky there will be a lot of them. Regardless, if you can have someone there who’s only agenda is being your friend it will make the whole thing a lot easier.

Get a good advocacy team for yourself. Once you have your personal support in place, make sure you like and trust your campus and community support resources. Check your counseling center and wellness offices to see if there is anyone dedicated to these issues. Check your community resources for centers that deal with these issues. Look to national resources like the Victim Rights Law Center for help finding them, and/or to see what else they can offer. Ask your RA who someone would speak to. Ask your judicial officer. There are going to be a lot of little things you may need, and these advocates should be able to fight for you so that you can focus on yourself and the case. There are, or should be, many campus resources available to you and whoever you chose as this advocate should help you make sure you are getting all of them. Note that these people can be the same as your support team, but I separated them because I think there are 2 distinct roles to play.

Understand each person’s ability to keep things “confidential.” Confidentiality is a tricky thing on college campuses. Most people you speak with cannot promise to keep things completely confidential (i.e. they do not have legal protection) and some must report certain incidents to a central body. You should be aware of each person’s willingness and ability to reveal only that information you want revealed so that you can make an informed decision of whom you are going to talk to.

There is no rush (or at least not as much of a rush as you might think.) Even in those judicial systems with a “statute of limitations” limiting the time you have to file charges, most of them allow for additional time for sexual assault cases. Check the time in the policy, and take as much of it as you need. Once you begin a case a school might have a timeliness requirement to resolve it (i.e. it must be heard within a certain (and brief) period of time after getting the complaint) so do not bring the case until you are ready. Your policies should state clearly what that time is or the campus advocate should know, but don’t hesitate to ask (or have someone ask) the judicial office anonymously. [I’ve had people create Gmail accounts with “anon30482” as their name and never hesitate to answer.] NOTE: In some cases the accused may try to use the delay against you by claiming that you would have acted quickly if it “really happened.” No board with any training should buy this, but you can always address it in your complaint.

Understand why you are bringing the case. This is not as obvious as it may seem. Something bad happened to you, and I commend you for bringing the case, but know what you want out of it. I’ve had people bring cases so that their boyfriend believed them. I’ve had people bring cases forward so that they could know they were “right.” I’ve had people bring cases for a number of reasons that were all valid, but you should know that the more specific the outcome you desire, the harder it will be to guarantee that the system will “work” for you. You should bring a case for any and every reason you want, but if you will only feel good with one particular result, you may not get that result. For example, if you want the person expelled the school may suspend him. If you want him suspended, he may be expelled. If you want him “punished” he may be found not responsible. I do not know any system that can promise you a particular result, but they should ALL be able to promise you that you will be heard. It is completely fair to expect the system to see the truth of your situation, but be careful about needing it to give you some validity. What happened to you was terrible and in no way your fault, but systems (and people) are flawed. Regardless of what a board decides, what happened to you is very real.

What happened to you is not your fault, so what happens to the person who did it to you is not your fault either. In my time I had many survivors say to me “I don’t to get him expelled or anything.” My biggest problem with that is that the survivor was making it clear that she believed that if she brought a case and he was expelled that it was somehow her responsibility. That could not be farther from the truth. When you bring a case against someone for something they did, your job is to present the facts. Once you do that the hearing body takes that information and decides what, if anything, can be done. If the perpetrator is expelled it is no more your fault that it is if nothing happens to him. The only thing you can control is the information you present. What the board does with it is outside of your control. While I understand that many sexual assaults occur between people with a previous relationship (i.e. they know each other) the fault for what happens to him lies with the person who committed the sexual assault.

Don’t be afraid of pissing off administration.You probably have an amazing administration that wants to do what they can for you, but not everyone is that lucky. Administrators (especially those who can make real decisions) often have many factors they have to consider when making decisions, so they often can’t (or won’t) do what you’d like them to do. Challenge them. Push. The worst thing that can happen is they get annoyed, but who cares? This is where your advocate can really be helpful. Don’t assume that they are going to tell you everything they can do for you so if there’s something you want, ask. They can only say no, but no matter how annoyed they get it won’t hurt your case. Something to consider is what you would like in the hearing to make you feel comfortable and safe. Providing a screen between you and the respondent should be doable, but you may have to ask for it and then insist on it if you get pushback. If they are being REALLY unhelpful do not hesitate to suggest that you will get a lawyer. While I normally do not like this tactic, I have no patience with people who are not willing to do simple things to mitigate the impact of this process.

Know that you can pull out at any time. This is your case. If you decide at any point that you don’t want to do it anymore, you can quit. While some systems may continue without you, pull out when you’ve had enough. They can’t force you to continue, and if it isn’t doing what you want it to do what’s the point? You have nothing to prove to anyone.

Trust yourself.Dr. David Lisak’s work points out that predators create situations where they can assault someone with that very situation giving them protection from prosecution. They isolate and intoxicate their victim so that there is self-blame and the details are hazier for the survivor than they are for them. I have worked with many survivors who did not even realize they were “sexually assaulted” until well after the event, but they all knew that what happened was not right. If you know something bad happened to you, that’s enough. It is a completely normal feeling and very common. It happened, it was not your fault, and it is not okay.

You are going to have to tell your story, so decide how you want to tell it. Most systems will have a written portion and a hearing. During that time, people will make decisions based on what information they get from you and the accused. If you do not tell them something, you can’t assume they will figure it out. You will need to find a balance between giving them enough information to work with, and sharing information that they don’t need to know. I used to advise people that they needed to share the outline of what happened, but that graphic details are not necessary if they made the complainant uncomfortable. I also believe it is easier to write it out because the hearing itself is more of an unknown. While you might be very comfortable in front of the hearing body, they might also be terrible terrible people. If you have everything written out then you can simply reference what you wrote, and don’t have to say it out loud. That way the information is there is something unexpected (and unwanted) happens at the hearing.

Do not worry about the fact that you drank, did drugs, or anything else. Most schools will not hold you accountable for minor violations if you are bringing a case forward. Even if they do, those “minor violations” are usually why you were assaulted in the first place. Do not try to cover them up. If the school really gives you a hard time, even a mediocre lawyer will make hash out of them. The same holds true with downplaying what you did. If you do not make it clear that you were intoxicated because you’re embarrassed or worried about getting in trouble, then the accused student can say that you were not intoxicated and therefore consented. I know there are some of you who have family or friends that may be very anti-alcohol or drugs, but if they can’t put it in perspective in this case they aren’t part of your support team.

Prepare and practice. The worst part of any hearing is the surprise. The more you can anticipate questions (even unacceptable personal ones) the better you will handle it in a hearing. This is a REALLY hard thing to do, but if you have people you trust that you know support you, having them do it is a lot better than that 72 year old professor do it in a hearing. This will not stop the revictimization, but it will lessen the impact.

Bring the discussion back to you. I have noticed that a LOT of cases and deliberation involve discussion on what was reasonable for the accused student to know and expect. “She said she was drunk, but he said he didn’t know and I believe him.” Most people put themselves in the mind of the accused and judge his actions in relation to how they would have acted. People have a hard time coming to terms with sexual assault because they think that a lot of the problems are “common situations.” This makes sense if you only think of sexual assault as “accidentally going to far” or “misreading cues.” However, just because it might make sense doesn’t mean it isn’t stupid. Sexual assault is a crime and they need to think about what happened in terms of what was reasonable for you to know and expect. I want the hearing body thinking “He said he didn’t know she was drunk, but it was 2am at a fraternity party and she only stayed over because he said she would get in trouble if she went back to the dorm. That is not giving consent.”

Each time I work with a survivor, whether it was for a judicial issue or as an advocate, I am amazed by the strength and courage that they have. This is not an easy process, but hopefully these points will give you a place to start.

Next: Advice for respondents

*Note that I use “survivors” to refer to the victims of sexual assault. There is a move back to using “victims,” but I still prefer to think of them as survivors.

**I am also using the feminine pronoun when I refer to the survivor and masculine when I refer to the attacker. While as many as 1 in 10 men are sexually assaulted, all of my experience is with female survivors with all but 1 respondent being male. In no way is this meant to minimize the plight of the male victim or the very real problem with same-sex sexual assault.

Some former colleagues of mine (who shall remain nameless) wrote me about my last blog because they thought I was insulting judicial systems as a whole, and they took offense at what they thought was my aggressive tone. I went back and forth with them for a while, but it quickly became clear that they could not separate themselves from their systems. They also could not understand how a system where the participants are not representing themselves to the best of their ability is inherently unfair; a fact I found particularly troubling. I don’t think most administrators (and certainly not the ones I know) try to be unfair, but it’s inevitable the way things are.

I am obsessed with fairness. I started College Judicial Consultants because I realized when students were either accused of something or wanted to hold other students accountable within the judicial system that the ancillary issues to the actual hearing made the process unfair no matter what I, or any other judicial officer, did. I had the privilege of working with an amazing disciplinary committee filled with dedicated and compassionate people who were extensively trained by a devilishly handsome judicial professional. They were thoughtful, took their time, and tried to understand each student who came before them. In short, they were the best any student brought before them could have hoped for. That being said, at least one out of every three students who came before them (estimated) was unable to either defend him/herself adequately, focused on the wrong issues, or made other completely understandable mistakes that either made or could have made the outcome completely unfair. The committee is not to blame, but the truth is what they were being held accountable for and the extent to which they were accountable were not solely based on the incident. This was even truer those times when one student accused another student of something. Most of these cases were sexual assault cases and the victim bringing the charges had to not only get past her own issues during the case and revictimize herself, but she also had to overcome sexual and gender issues of the people who listened. Again, the committee was excellent, but very few of us truly understand our subconscious beliefs enough to identify them and not let them influence our decision. (That’s a whole other issue that I’ll discuss later, so I’m really going to focus on respondents here.)

This is not unique to discipline systems. Look at America’s courts. If every person who went to criminal or civil court had the exact same amount of money and the exact same quality of attorney, our system would be as close to perfect as it could be. A corporation could not outspend you, a clever defense attorney couldn’t say, “if it doesn’t fit, you must acquit” and get you off the hook for brutally murdering 2 people, you wouldn’t be executed if you were clinically dysfunctional, etc. The facts of a particular case and all relevant details surrounding them would be the basis for the outcome, and I will take that system every time. But that’s not the case so the poor, the uneducated, and the subordinated groups (i.e. those without equal access to power and privilege; the “oppressed”) face greater incarceration, have less effective legal defense of their rights, and are victims of unfair systems much more than their privileged counterparts.

The same is true in judicial cases. An accused student in a disciplinary case is almost always accused by someone with more inherent authority than them, whether it the appointed authority of an RA or the positional authority of a dean or professor. They almost always have less knowledge of the subject in contention than the person accusing them so defending themselves is an uphill battle. (See my earlier blog on fairness for more discussion on this.) They do not know the system as well as the person accusing them since it is almost always their first time in that system where the person accusing them has either been trained in the system, has accused other people, or can call on colleagues with greater institutional memory to help them navigate the system. Perhaps worst of all, they are compromised by the stress of the hearing, the potential implications of being found responsible, the shame that comes with being accused, and the fear of failing and having to face everyone you know. That agitated state can make them seem cold, distant, and dishonest when they could simply be scared, and that influences a committee’s decision-making. It’s not intentional, it’s not personal, and it’s not a reflection on the ethics of any individuals; but it is unfair.

People may not be as concerned with fairness as I am, and that’s not necessarily because they are trying to be unfair. When I ran a system I had to be concerned about procedural consistency, legality, regulatory compliance, institutional commitments, departmental support (or lack thereof), and messaging as well as fairness. I did the best I could, and I believe others do the best they can, but many of those “goals” conflict with fairness as it relates to the individual going through the system. (e.g. I could not point out where the committee may have made a mistake during an appeal.) Fairness does not mean that people in the system get what they want, but it should they get what they deserve and for the right reasons.

I don’t think any system can empower the students in the disciplinary process for many reasons and those reasons are almost never about the competency and professionalism of the administration. That’s why I created College Judicial Consultants-to help respondents and complainants have the outcome be fair. In CJC we can take all the time a client needs to help them because that is what we do, and all that we do. We have no professional conflicts that limit our ability to assist a student to the extent they need, and college judicial systems do. We say we give people their “best chance for the best result” and what that really means is the best chance for a fair result.